[Cite as State v. Lemaster, 2012-Ohio-971.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA3236
:
vs. : Released: March 2, 2012
:
BRANDY K. LEMASTER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Jessica S. McDonald, Assistant
Ohio Public Defender, Chillicothe, Ohio, for Appellant.
Toni L. Eddy, City of Chillicothe Law Director, and Michele R. Rout,
Assistant City of Chillicothe Law Director, Chillicothe, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} Appellant, Brandy Lemaster, appeals the Chillicothe Municipal
Court’s judgment denying her motion to suppress all evidence obtained from
an allegedly illegal stop. On appeal, Appellant contends that the court below
erred in ruling that there existed probable cause to stop her vehicle when the
video did not show any traffic violation in which to justify the stop. As we
conclude that the trooper had probable cause to stop Appellant’s vehicle, we
disagree. Accordingly, we affirm the trial court’s judgment.
Ross App. No. 11CA3236 2
FACTS
{¶2} Appellant’s vehicle was stopped at 2:20 a.m. on May 28, 2010,
as it was travelling north on State Route 23 after Trooper Morgan of the
Ohio State Highway Patrol observed Appellant driving outside of the clearly
marked lanes of travel and weaving within her lane. Based upon this
observation, the trooper activated his emergency lights to initiate a traffic
stop. Upon making contact with Appellant, Appellant informed Trooper
Morgan that she was on her way to the hospital because she had just broken
her ankle. The trooper noted Appellant’s eyes appeared droopy, bloodshot
and glassy, her speech was affected, and she seemed lethargic. Appellant
also informed the trooper that she had taken Percocet and Xanax. After
performing and failing a Horizontal Gaze Nystagmus field sobriety test,
Appellant was transported by ambulance to Adena Medical Center.
{¶3} As Trooper Morgan’s shift was ending, Trooper Wilson took
over the investigation and met with Appellant at the hospital. After
Appellant refused a urine test, she was cited for OVI, as well as a marked
lanes violation. Appellant initially pled not guilty to the charges and the
matter was scheduled for trial. Prior to trial, on December 2, 2010,
Appellant filed a motion to suppress any evidence obtained by the allegedly
illegal stop. In support of her motion, Appellant argued that the video
Ross App. No. 11CA3236 3
recording of the traffic stop failed to show that she left her lane of travel or
any other erratic driving that would have justified a stop.
{¶4} A suppression hearing was held on January 31, 2011, at which
Trooper Morgan testified for the State. Trooper Morgan testified that he
observed a marked lanes violation, and then turned on the video to observe
further driving, which he further testified exhibited weaving within the lane
of travel. In addition, the State introduced the video recording of the stop.
In response to claims by Appellant’s counsel that the video failed to show
any traffic violation, Trooper Morgan testified that he “could better see”
with his eyes “than this camera is showing.” Appellant did not offer any
evidence; however, Appellant’s counsel argued that the video failed to show
a marked lanes violation and as such there was no probable cause for the
stop.
{¶5} The trial court issued its findings in open court denying
Appellant’s motion to suppress. In reaching its decision, the trial court
noted that “if the Court had to rely solely on the video, the Court would
agree with Mrs. McDonald [Appellant’s counsel] that the video doesn’t
conclusively show marked lanes violation, but the Court believes the trooper
had the better perspective seated at that distance.” As a result, Appellant
entered a plea of no contest to the OVI offense, in exchange for the State
Ross App. No. 11CA3236 4
dismissing the marked lanes charge. The trial court found Appellant guilty
of OVI and sentenced her accordingly. It is from the trial court’s denial of
her motion to suppress that Appellant now brings her timely appeal,
assigning a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE COURT BELOW ERRED IN RULING THAT THERE
EXISTED PROBABLE CAUSE TO STOP THE DEFENDANT’S
VEHICLE WHEN THE VIDEO DID NOT SHOW ANY TRAFFIC
VIOLATION TO JUSTIFY THE STOP.”
LEGAL ANALYSIS
{¶6} In her sole assignment of error, Appellant contends that the trial
court erred in ruling that there existed probable cause to stop her vehicle
when the video did not show any traffic violation to justify the stop.
Appellant further states that the issue presented for review is whether the
trial court properly overruled her motion to suppress evidence when the
video evidence of the events surrounding the traffic stop was in direct
contradiction to the trooper’s testimony, and failed to show any violation of
law that would justify the stop.
{¶7} Our review of a decision on a motion to suppress “presents
mixed questions of law and fact.” State v. McNamara (1997), 124 Ohio
App.3d 706, 710, 707 N.E.2d 539; citing United States v. Martinez (C.A.11,
1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court is in the
Ross App. No. 11CA3236 5
best position to evaluate witness credibility. State v. Dunlap (1995), 73 Ohio
St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988. Accordingly, we must
uphold the trial court's findings of fact if competent, credible evidence in the
record supports them. Id. We then conduct a de novo review of the trial
court's application of the law to the facts. State v. Anderson (1995), 100
Ohio App.3d 688, 691, 654 N.E.2d 1034; State v. Fields (Nov. 29, 1999),
Hocking App. No. 99CA11, 1999 WL 1125120.
{¶8} The Fourth Amendment to the United States Constitution and
Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the
people to be secure * * * against unreasonable searches and seizures * * *.”
Searches and seizures conducted without a prior finding of probable cause
by a judge or magistrate “are per se unreasonable under the Fourth
Amendment, subject to only a few specifically established and well-
delineated exceptions.” California v. Acevedo (1991), 500 U.S. 565, 111
S.Ct. 1982; State v. Tincher (1988), 47 Ohio App.3d 188, 548 N.E.2d 251. If
the government obtains evidence through actions that violate an accused's
Fourth Amendment rights, that evidence must be excluded at trial.
{¶9} Appellant was initially stopped for a marked lanes violation.
R.C. 4511.33, which governs rules for driving in marked lanes provides as
follows:
Ross App. No. 11CA3236 6
“(A) Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, or wherever within municipal corporations traffic is
lawfully moving in two or more substantially continuous lines in the same
direction, the following rules apply:
(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable,
entirely within a single lane or line of traffic and shall not be moved from
such lane or line until the driver has first ascertained that such movement
can be made with safety.”
{¶10} A police officer may stop the driver of a vehicle after observing
a de minimis violation of traffic laws. State v. Guseman, Athens App. No.
08CA15, 2009-Ohio-952 at ¶ 20, citing, State v. Bowie, Washington App.
No. 01 CA34, 2002-Ohio-3553, ¶ 8, 12, and 16, citing Whren v. United
States (1996), 517 U.S. 806, 116 S.Ct. 1769. See, also, Dayton v. Erickson
(1996), 76 Ohio St.3d 3, syllabus. When the officer has probable cause to
believe that a traffic violation has occurred, the detention of a motorist is
reasonable and constitutional. Id.; see, also, State v. McDonald, Washington
App. No. 04CA7, 2004-Ohio-5395, ¶ 17-18.
{¶11} Appellant relies on the case of Village of New Lebanon v.
Blankenship (Montgomery C.P, 1993), 65 Ohio Misc.2d 1, 640 N.E.2d 271,
in support of her argument the trooper did not possess probable cause to
initiate a traffic stop. In Blankenship, the driver was stopped after he was
observed weaving in his own lane of travel, on a road without a centerline.
We find the facts of Blankenship to be distinguishable from the facts in this
Ross App. No. 11CA3236 7
case. But see, State v. Guseman, supra (Judge Harsha’s concurring opinion
finding no need to distinguish from Blankenship because it is nonbinding
and finding that “any persuasive effect its rationale may have carried has
been extinguished by the subsequent rulings of the Supreme Court of the
United States and the Supreme Court of Ohio”). In Blankenship, the state
charged the defendant with a marked lane violation, contrary to R.C.
4511.33, despite the fact that the lanes were not marked and despite the fact
that the officer only observed the defendant weaving within his own lane of
travel. The court concluded that the officer's observations of the defendant
weaving in his own lane did not support a charge under R.C. 4511.33 or
R.C. 4511.25. In addition, as we noted in Guseman at ¶ 22, the key issue in
Blankenship was whether the officer could properly stop the defendant under
R.C. 4511.33 or R.C. 4511.25 when the officer only observed the defendant
weaving in his own lane. That is not the issue in this case.
{¶12} Here, the court found that the trooper observed Appellant travel
outside of marked lanes. Competent, credible evidence in the form of the
trooper’s testimony from the suppression hearing supports this finding,
despite the fact that this violation was not caught on the video. Although
Appellant attempts to argue that the trooper testified that Appellant’s
mirrors, rather than her tires, crossed over the line, a close review of the
Ross App. No. 11CA3236 8
transcript reveals that the trooper clarified his testimony to state that her tires
crossed the lines, which prompted him to activate his video. Further,
although the trial court noted that the video, standing alone, was not enough
to show a marked lanes violation, the court noted its belief that the trooper’s
view would have been better than the camera view, and that the trooper was
believable. As such, the trial court found a marked lanes violation and
denied Appellant’s motion to suppress.
{¶13} Based on the totality of these circumstances, we find
competent, credible evidence in the record to support the trial court’s
decision and as such, we cannot conclude that the trial court erred when it
found that the trooper had probable cause to stop Appellant for a marked
lanes violation.
{¶14} Accordingly, we overrule Appellant’s sole assignment of error.
JUDGMENT AFFIRMED.
Ross App. No. 11CA3236 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Chillicothe Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
State v. Lemaster
Combined Opinion